Posted
by
Roblimo
on Monday September 11, 2006 @01:31PM
from the when-you-want-an-expert-opinion-ask-an-expert dept.

Attorneys Ty Rogers and Ray Beckerman maintain a blog called Recording Industry vs The People, subtitled, "A blog devoted to the RIAA's lawsuits of intimidation brought against ordinary working people," which was most recently linked from Slashdot on Sept. 10. They've agreed to answer your questions about RIAA suits -- and they obviously will not preface their answers with "IANAL," although we must note that they cannot give specific legal advice about specific cases. For that you need to engage an attorney yourself. (Luckily, their site contains a directory of lawyers willing to defend against RIAA suits.) In any case, these guys obviously know more than the average bear (or lawyer) about how the RIAA goes about suing music fans, how to keep from getting sued by the RIAA, and how to fight back if you do get sued, so we're glad they're willing to help us learn more about this apparently endless legal mess. Usual Slashdot interview rules apply.

(3) Lose. File for bankruptcy. RIAA takes all your assets except your vehicle and housing. Seven years of credit hell costing you more than the $5k in the first place. You're better off taking out a HELOC if you can.

Settle? I think settlement is like between 3-5k in most cases. Enough for the RIAA to make an example out of you, but not enough so that you are completely backed into a corner and fight to the (financial)death.

Set up a meeting with the RIAA attorney to arrange payment. Have a gun and a piece of paper that says that the suit is dropped by the RIAA.
Meet the RIAA. Pull the gun. Tell the creep that either their signature will be on the paper or their brains will be. If he doesn't sign the paper dropping the suit, then blow his brains out. If he does sign, then don't harm him. After all, you are a man of honor even when dealing with worthless scum like RIAA lawyers that the world would be better off not having anyway.
If he laughs at you, shoot his hand apart like in "Taxi Driver". If he stares you in the eye and offers to reduce your fine by 20%, then shoot him in the leg. Take his wallet and leave. If he offers to go down to 50% of the fine after you shoot him in the leg and blow his hand apart, then agree to the 50% fine. Then pay him a retainer and have him become your lawyer in all future dealings with the RIAA. He's a pit bull.

If everybody did this then we wouldn't have this kind of trouble from these asshats. Nobody in Iraq or Russia or the Congo ever has to worry about the RIAA, why should we? After all, killing an RIAA lawyer isn't exactly killing a human being, is it?

You wish. Certain types of debts cannot be discharged (erased). They include child support, alimony, government-issued or government-guaranteed student loans, and debts incurred as the result of fraud. It's also very unlikely that a judge will discharge legal settlements you've been assessed, such as money you've been ordered to pay to someone who sued you.12 myths about bankruptcy [bankrate.com]

If it got that bad, I'd probably stop working and play stay-at-home dad. They'd be getting no blood from this turnip. Until they reinstituted debtor prisons, they couldn't touch me so long as I wasn't married. In Ohio we have a very strict definition of marriage, so the RIAA couldn't try to get money from my girlfriend

Your girl friend may want to talk to a lawyer about her exposure under federal civil and criminal law. Living arrangements that appear to have been constructed to avoid a legal judgement can

As with any civil case, the cost of a defense tends to be *far* higher if you are guilty, that is, if the plaintiff has evidence that suggests you are actually responsible for the damage being claimed.When you hear about expensive lawsuit defenses, where people try to scare you out of the idea of even *trying* to defend yourself, you generally do not hear it from someone who is clearly in no way responsible for the damage being claimed. In fact, you usually hear it from someone who is actually guilty but s

I don't think that a defense lawyer could legally and ethically say if his client was guilty. I think the distinction to be made here is "No, I never used eDonkey or BitTorrent" not guilty and "What's the Internet?" not guilty.

A lot of people settle out of court [com.com] when they are sued and it turns out to be between $12,000 & $17,000. Now, this looks like chump change compared to the $150,000 per violation and 1,000 songs shared means $150,000,000 lawsuit. Is this smart or stupid? I mean, don't you, the lawyers that these people consult, tell them to fold and pay the little amount of money?

Follow up to that, do you believe the RIAA would actually win a $150,000,000 lawsuit if the out of court routes weren't taken? They seem to imply they wouldn't win if they offer these tiny settlements en masse.

Now, this looks like chump change compared to the $150,000 per violation and 1,000 songs shared means $150,000,000 lawsuit. Is this smart or stupid? I mean, don't you, the lawyers that these people consult, tell them to fold and pay the little amount of money?

I'm more interesting in knowing how they can justify calculating that they have lost $150,000 per song "shared" and why they don't have to show any proof that this amount damage actually occured per song.

I'm confused. How does one define a 'unit' of infringement? I mean, is it a single tarball of albums by the same author, or a single album, or a single song, or maybe a single minute of a song? Surely if I should ever copy a tarball album without permission, I have only infringed once.

So if you make one million copies of a single book, then it only counts once for the purpose of calculating statutory damages. But if you make one copy each of two different books, then that counts twice.

(2) In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000.

So basically the RIAA is *asking* the court for 150k to make the numbers look ridiculously high in order to get people to fold. Or in other words they are pointing the barrel of a tank cannon at you and hoping you will pee in your pants.

I'm more interesting in knowing how they can justify calculating that they have lost $150,000 per song "shared" and why they don't have to show any proof that this amount damage actually occured per song.

Statutory damages range from 750$-150,000$, I imagine the awarded damages would be 750$/song, which is the minimum the law permits. The RIAA do of course sue for the maximum possible damages, which is where you get the multi-billion dollar headlines from. But even at 750$ it takes essentially nothing to ban

Ok, so the RIAA's modus operandi seems to be filing suit against someone living half way across the country. If someone in California is charged for file sharing in New York (like what happened here [p2pnet.net], what can they do to stop this? Doesn't our justice system prevent this we-know-you're-not-going-to-come-all-the-way-over- here-so-just-settle-out-of-court strategy?

I hear a lot that the RIAA has the weakest evidence ever in these cases. Such as screen shots of dynamic IP addresses [cdfreaks.com] taken from Kazaa. How the hell do judges across this country uphold these cases with such lack of concrete evidence? I mean, give me five minutes in photoshop and I'll make you a "screenshot" of Kazaa with www.whitehouse.gov's IP address listed over and over on it. Can't an expert witness cause this evidence to be thrown out quickly?

The RIAA seems to be able to ask for some pretty outrageous things in their discovery requests, including seizing equipment, hard drives, etc. Can I do the same to them? Can I request the discovery of all evidence they will use in the case, including the seizing of all computers and servers used in their investigation, so I can have them expertly examined and prevent tampering?

This would interest me as well. I had to take part in a legal action against an (ex)employee once in which I had to produce all sorts of logs as evidence. I work for a regulated company and am thus all too familiar with validation concepts relating to the control of electronic records. Since the logs I produced were just text with a virtually non-existant degree of authenticity, I figured that they would be considered weak evidence and that I would at the least have a lot of explaining to do in terms who

No. It's perfectly good evidence.If it's easy to fake, then you should present that fact. Then the jury decides whether they believe it or whether they think it's fake, and based upon that, whether they think you did what you're accused of. That's their job. They could go either way.

If you want to exclude evidence, you need a different, better, reason than that it might not be true. Courts determine truth based on evidence.

You can read the Federal Rules of Evidence here [cornell.edu]. You'd probably want to start with R.

Perhaps they are not at the moment? But routinely at universities something from Sony and presumably other labels have been since Napster days [and maybe no longer?] sending cease and desist orders to students on campuses, through the university administration.

I recall some case a couple years ago that was a setback for CRIA lawsuits in Canada, but that doesn't mean they won't try intimidating people here even if they will lose in court.

I just go to the library or rip the CD.What I'd love is a program that will rip and encode the CD (like Grip) but will wait for internet access to rename the files.This way I could easily rip the CD without needing internet access at that time to name the files.

Is there anyway to ask a judge to throw out cases when the RIAA's lawsuits become [theregister.co.uk] unbelievably [foxnews.com] ridiculous [arstechnica.com]?

I mean, who is going to chase after these lawsuits and counter sue? What repurcussions can a counter suit have on the RIAA? And, if they do successfully counter sue, how much does that slow down the RIAA?

When will this end? Could there be an epic counter suit that would make the RIAA stop with law suits?

Do you see the current situation as a systemic problem in the current torts system? Specifically, do you think we need legislative intervention to correct the "money bias" in our legal system?

I mean, there doesn't seem to be much of a way to fight an RIAA lawsuit money-wise. It always seems to end quickly: Either the defendant ist so obviously innocent they drop the case or he/she settles for "pennies on the dollar". When do you think we'll see a few definite trials to answer the hanging legal questions about investigative tactics and what an IP proves?

When I heard that the RIAA wanted to physically take possession of the equipment belonging to people they sued for discovery purposes, I was less than happy with that prospect. I use a hardware-encrypted hard drive that requires a bootup password. Without my cooperation, no one will every see what's on my drive. Given that the revelation of other content on my drive would place me in far greater jeopardy than anything having to do with pirated music (Assume the worst if you wish; you wouldn't be correct), I would never cooperate with such discovery.

Is there any mecahnism by which the court can compel my cooperation and are there any penalties for steadfastly refusing to provide it?

I use a hardware-encrypted hard drive that requires a bootup password.

do you have the option to create a 'second password', one which deletes your pr0n and mp3's or trashes your drive completely even if you were forced to give them the 'password'? Then sue them for destroying evidence proving your 'innocence'.

(I 'heard' that if you go through Canadian customs you can be required to give them access to the computer, and in the UK can be jailed for not giving the password.)

That would be funny if someone compelled you on your premesis, with the threat of taking your machine if you didn't comply. Unfortunately, if your machine is taken, they will of course create a master raw image and put the drive into storage, working off copies of the master image after that. Your evidence will not be destroyed. You have to make sure they don't get it in the first place.

Especially since you, as I understand, at least in the USA have the right to remain silent.

Not really. In criminal cases (IANAL, etc.), prosecutors can compel self-incriminating testimony by granting immunity. If you can't be charged for anything you say, nothing you say can be self-incriminatory. Thus, the right to remain silent (which exists solely to protect you from self-incrimination) disappears. At least, that's the way I understand it.

Your right to remain silent has nothing to do with examination of your physical possessions. For example if a man driving a Delorean with a cracked mirror and one tail light robbed a store, the fact that you own said Delorian could still be used as evidence.

There's a certain peer-to-peer music filesharing client which, erm, a friend of mine uses frequently and loves dearly. They claim on their website to be all about sharing music between independent artists who've agreed to release it royalty-free, but in practice the content's all copyrighted. It's just like what Napster was in the good old days, only better. It's an absolute Aladdin's cave. What's more, if you want to jump people's download queues and get the music you're after without waiting your turn, you can pay the organisation behind the network for privileged status and ransack people's record collections left, right and centre.

I'm sure you know the network I'm talking about. My question is, given that they came down on Napster like a ton of bricks, and chase people like Kazaa and the torrent sites relentlessly, how the hell does this lot get away with it?

Is there any way to get lawyers to see these kinds of abusive clients like the RIAA as threats to the lawyers, instead of just threats to defendants (when they win) or the RIAA (when they lose)? Or are we stuck with funded organizations like the RIAA "playing the numbers game" and suing anyone with any chance of being found guilty/liable, getting lawyers paid on both sides of the lawsuit?

Everyone is asking about how to defend against the suits. I want to know the other side of things:

What do you think that the RIAA should do to prevent piracy? Do you agree or disagree with the lawsuits as they are doing them now? Do you suggest a better way? How about your opinion on the current state of copyright law?

You dont have to use your credit-card. Earlier you could buy an xrost-card (which is like an online currency) using paypal and use it for buying music. I think they dont allow paypal anymore because it was probably more expensive for them, but you still can by music using xrost card without ever disclosing your credit-card information.

Some years ago, the RIAA's legal actions tended to be againt companies, such as Napster, that created the tools or ran servers used by millions of people to share files. Much of this sharing consisted of alleged copyright violations, so the argument was that such software was contributory to infringement despite any non-infringing uses it might have.

Many people here on Slashdot were repelled (so to speak) by the attack on software that did truly have non-infringing uses, and argued that the lawsuits should target the individuals responsible, rather than the technology they were using. I had a lot of sympathy for those arguments.

Now that the RIAA does sue individuals instead, do you believe they do so because it became too hard to sue companies, or because they bought into the idea of individual responsibility? In other words, did the category of lawsuits change because the companies and software are now structured so as to be too difficult to sue?

Oh for Pete's sake. You should not use an ad hominem attack, even one made, as you do, against such a despicable entity as the RIAA. Do you really think copyrights should never be enforced?The point of the question is to determine whether the RIAA stopped suing the functional equivalents of Kazaa because it became too difficult, or because they thought a campaign against individuals was really the right way to go about trying to reduce infringement. I found the suits against companies utterly reprehensib

Are there any precedents in history of any industry doing anything like this before? I know there have been examples of cartels forming and the cartel using their combined power against other businesses, but is there anything in history like a cartel using its massive legal leverage against their own customer base?

True, other monopolies do exercise their powers against their customers, but in a cash-only way as far as I know. To explain a bit, has an oil company ever sued someone for using biodiesel? A cellular company for people using HAM radio? The analogies aren't perfect, but hopefully you get my gist. The RIAA seems to be doing something unique. They're not just gouging their customer base, they're taking them to court over perceived (and very hard to justify) damages in what amounts to an extortion racket.

Um... the whole point is that the people who are downloading music without paying for it are _not_ the RIAA's customer base - the ones who buy the records are their customer base and the RIAA is not suing people for legally buying records.

I think you'll find that downloading increases [unc.edu] sales. [afterdawn.com] People who use P2P and download music buy more albums. Therefore, the people they are suing are, in fact, their customer base.

RIAA presumably has a right to defend its copyrights in court, but its tactics seem to be designed to force people to avoid a fight that, while they might win, might also drain them financially. Does this count as racketeering? If so, could RIAA be subject to a class action suit under the RICO laws? If not, how can ordinary citizens who may have done nothing wrong defend themselves without burning through all of their cash in the process?

I've always wondered this and I'm not sure entirely how it would work but if a household has a wireless connection setup and they maintain standard security (WEP, MAC filtering) and the such, which clearly shown to be vulnerable to attacks/intrusion, how can a court prove without doubt that it was in fact that person who was involved in piracy?
Furthermore, would it be their fault? They implemented the security they could yet there are still ways around it. If it still holds up for the RIAA side, couldn't they just blindly point fingers at people (not that they already don't) and win?

Depends on whether or not they have distribution rights on those titles in the US, I would think. If they do, then I think they can. If not, then they'll probably rat you out to whatever their Japanese equivalent is

Which of the following are illegal and why? Which of the following are in a legal grey area?

1) Trading CDs via US Mail2) Ripping CDs that I own to mp3, and playing them on my computer.
2a) Backing up CDs to mp3 on my computer3) Ripping CDs that I own to mp3, and then putting them on my mp3 player for my own personal use.
3a)Loaning the mp3 player to my friend with the ripped music from question 34) Borrowing a CD from the library, ripping the CD to my computer and listening to the music on my mp3 player, and deleting the music when I return the CD to the library.
4a) Never deleting the music from the computer/mp3 player5) Emailing an mp3 from question 2 to one friend to listen to, and requesting that he delete it once he is finished.
5a) emailing an mp3 to 10 friends and asking them to delete it once its been listened to?
5b)...not asking them to delete it.6) Using a p2p service to trade mp3s from CDs they own with mp3s from CDs you own7) Using allofmp3 to download music8) Stripping copy protection from iTunes or PlaysForSure music files, to play them on your mp3 player.9) How does the RIAA show that the music you have on your computer are not backup mp3 files from CDs that were destroyed or lost by you?
9a) Can I use a p2p service to acquire a song I legally owned from a CD I owned, but was destroyed or lost?

I haven't looked at so-called screenshots that the RIAA produces in court, and haven't myself looked at a Kazaa screen (or limewire, etc) to see what kind of IP addresses are shown, but there are two possibilities: the public IP address or the Private IP address. More and more on the Internet, each public IP address has behind it some private IP addresses, that typically can't be connected reliably for a given time to a specific computer, let alone a specific hard drive.
Questions:
Does current 4th amendment legal precedent allow for the confiscation of anything capable of storing files from behind a public IP address?

In otherwords, if I'm running a 'Internet cafe', and someone in my place allegedly downloads a music file, and the public IP shows up on an RIAA screenshot, is it legal for a judge to order everything in my cafe to be confiscated and searched? Does 4th amendment legal precedent allow for such mass grab-everything-and-go searches?

Has anyone ever pointed out to a judge how easy it is to fake a screenshot? Are there any rules of discovery regarding such flimsy evidence? I mean, suppose I want to accuse the RIAA of threatening me with murder in a court, and produce a piece of paper with a death threat that has the RIAA's corporate headquarters letterhead on it, all on a very good looking piece of laser printed output. Wouldn't most courts throw out something so easily faked? What if I just handwrote in crayon "I'm the RIAA and I'm coming to kill you" on a piece of paper, and them sued them using that as evidence? How far would that get in a court of law?

Are there such things as 'vexatious litigant' laws is some states? If so, how does someone get declared to be a 'vexatious litigant', and what are the consequences?

While I belive that downloading songs via P2P networks and burning copies of CD recordings with a computer CD-ROM drive is illegal under current law, I was wondering under what circumstances, if any, copying of recorded music on CDs is allowed for personal use. I have been under the impression for some time that the Audio Home Recording Act of 1992 allows me to make all of the private use digital copies I would like provided I am using something like a set-top CD Recorder and the taxed blank CD's produced for music copying. How does borrowing a CD from the public library and making a copy using one of these types of devices fall under the long arm of the RIAA and existing law? Thanks for taking the time to address this.

Here are what I believe to be the relevent sections from the Audio Home Recording Act of 1992:

Section 1001 defines a "digital audio recording device" as: "Any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use...".

Section 1001 defines a "digital audio recording medium" as "any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device.

Such term (digital audio recording medium - my addition) does not include any material object--

(i) that embodies a sound recording at the time it is first distributed by the importer or manufacturer; or

(ii) that is primarily marketed and most commonly used by consumers either for the purpose of making copies of motion pictures or other audiovisual works or for the purpose of making copies of nonmusical literary works, including computer programs or data bases."

Section 1008 says "No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the non-commercial use by a consumer of such a device or medium for making digital musical recordings or analog music recordings."

Based on my reading of this act, I cannot be sued or arrested under a certain set of circumstances. I.e., using a set-top CD recorder and taxed Music CD blanks. Are there other laws that circumvent this and make it illegal?

Is this a (legal) end run? Download your music, burn it to taxed music CDs, and it's now legally yours to do with under otherwise fair-uses, such as format shifting and backups for personal use only (on non-taxed media). This is a pretty big loophole if it is true. (And I'm hoping you get your question answered)

Slashdot has an international audience of technology-savvy readers. Many of us have laughed at the hilarious responses [thepiratebay.org] to international threats made by some who seem to believe US law applies worldwide. More seriously, what, if anything can the RIAA do to folks outside the US?

Over the years I have attempted to educate some of the 'younger' generation about the do-s and don't-s of music copying and sharing. The following questions have come up out of real experiences and I have never had anyone provide a reasonable (justifiable) answer.

1. If I purchase a CD and it is subsequently stolen (along with my 5 disc changer *@$#!!) do I retain any rights to listen to that music?

. a. Are the.mp3 files of that CD on my computer legal or do they now belong to the thief too?

. b. Can I re-burn a CD from the.mp3s and is that legal?

. c. Does me having a backup copy of the files on my computer mean I can't make an insurance claim?

. d. What if it is destroyed (for example by a fire) rather than stolen?

2. If I purchase a CD and it is subsequently scratched or broken to the point where it is not playable, can I legally download the songs from that CD from a file-sharing network?

3. If I purchase the DVD for a movie, could I legally download songs from the soundtrack for that movie from a file-sharing network?

4. If I purchase a CD that our entire family listens to, and then my daughter leaves for College, can she legally take a copy of an.mp3 ripped from that CD with her on her computer? or - similarly - could she take the disc and could I keep the.mp3 on my computer?

If you can't PROVE that you purchased (or otherwise legally own) the actual physical media and at one time actually had it in your possession, then you don't really "own" it, as far as the law is concerned.

Which makes backups pretty pointless, unless you keep all of your receipts.

And no, your daughter can't have MP3s of CDs that are in YOUR possession, and that you purchased. At least, not after she moves out of your home.

If copyright infringement is the basis for the suit, then would not the copyright holder have to bring on the action against the suspected infringing party? The RIAA does not represent all studios and artists, yet they are bringing actions against an individual without their group directly being infringed upon. I understand that they are representing the interests of the studios and or copyright holders, but doesn't the actual copyright holder have to bring their case forth?

From what I've read of the RIAA, they seem to be instigating actions against individuals, but there's not been mentioned any direct copyright holders bringing actions against individuals. Could you clarify this please?

What are the exact legal laws for ownership of a particular piece of content, such as a book, CD, or DVD?

If I buy a CD, can my wife make a copy? If my son-in-law buys a CD, can I make a copy?If two people each contribute $5 to buy a $10 DVD, can they make a copy?If 100 people each contribue a dime to buy a $10 DVD, can they all gather together and watch it?Can a corporation own a DVD? Can they make the DVD or DVD content viewable on a secure intranet for all employees of the corporation? Can they make it downloadable?

Are there any specific cases or laws relating to this? How many people can own a CD? Is it limited to one person? One household? Also if you could address any possible permutations or exceptions I may have missed, that would be great.

In your opinion is there a percentage of countersuits (compared to the number of suits filed by the RIAA), particularly percentage of countersuits won, that would dissuade the RIAA from filing suits of this kind?

On a related note, is there such a thing as a class action countersuit? Can those sued by the RIAA gather together and countersue the RIAA?

Has anyone ever considered Jury Nullification to get folks to simply declare the concept of intellectual property and perpetual copyright invalid? If most folks agree (and I don't know if they do or not) that the law is broken, isn't the judge obliged to agree?

Realistically, what safeguards are there against someone simply suing you, on any grounds or no grounds at all, and offering a settlement which is slightly below the minimum it would cost to defend oneself? This isn't just the RIAA; DirecTV did the same thing against people who bought perfectly legal "unloopers", and when they countersued, the judge slapped them with DirecTVs legal costs.

It's pretty clear that the RIAA's lawsuit strategy is based on forcing
a settlement rather than seeing the case go to court. Furthermore, it
seems like these cases are pretty groundless and the only reason they
keep winning is because it's cheaper to settle than it is to fight.

So that being the case, isn't that barratry? Why hasn't the RIAA been
charged for that?

Instead of playing Whack-a-Mole by defending clients that are being extorted by these thugs in Gabardine, why aren't you doing anything about stopping it in the first place? Why haven't you petititioned the Attorney General to bring RICO charges against the members of the RIAA?